Terminating an H-1B Employee

With the declining US Economy, many employers are laying off employees, and some of them are H-1B employees. However, unlike ordinary employees, the Employer is supposed to take certain measures, while terminating an H-1B employee.

1. NOTIFY THE EMPLOYEE: The employer is supposed to pay the H-1B employee the amount promised under the LCA., when that employee is “benched”, ie non performing employee due to lack of work. Rehiring a benched employee does NOT constitute a termination. The Employer is supposed to provide the Employee with a Notice that the Employment relationship is terminated. Oral termination may run into proof issues, so a written termination letter is advisable. Please note that if an employee takes time off voluntarily, (for instance to have a baby, or to care for a sick relative), the Employer is under no obligation to pay or to terminate during that period, if the employee joins him again.

2. NOTIFY USCIS and perhaps the DOL: The H-1B regulations state that the Employer shall notify the USCIS of terminations. The Employer should write to the Office that he filed the H-1B with and notify them of the termination. Although there is no regulations that the Employer should notify the DOL, it is advisable to do so. This is bacause under the LCA, the Employer’s liability to the Employee continues for 1 year after the termination, if the LCA is not terminated as well. Although there are no Govermnment sanctions for failure to notify, the H-1B employee can file with the DOL, who has the authority to enforce the Employer to pay back wages to the Employee

3. Pay for Employee’s transportation home: This only applies if the H-1B employee was to leave permanently for his home country. So if the H-1B employee decides to stay in the US and take up appointments any wharere else, the Employer does not need to pay for transportation home. The transportation has to be “reasonable.” So first class plane fair is probably not reasonable. Also, the employer does not have to pay for the H-4 beneficiaries.